English

Adjective

The term inalienable rights (or unalienable
rights) refers to a theoretical set of
individual human rights
that by their nature cannot be taken away, violated, or transferred
from one person to another. They are considered more fundamental
than alienable rights, such as rights in a specific piece of
property.

Inalienable (Individual) Rights are: natural
rights to life, liberty, and the pursuit of happiness. They are the
most fundamental set of human rights, natural means not-granted nor
conditional. They are applicable only to humans, as the basic
necessity of their survival.

Etymology

"Inalienable" (or "unalienable") is a term
borrowed from English
common law. Some property rights were alienable
(they could be sold or granted) and some were inalienable (they
could only be inherited according to fixed rule).

History

The idea that certain rights are inalienable was
found in early Islamic law and
jurisprudence,
which denied a ruler "the right to take away from his subjects
certain rights which inhere in his or her person as a human being."
Islamic rulers could not take away certain rights from their
subjects on the basis that "they become rights by reason of the fact that they are
given to a subject by a law and from a source which no ruler can
question or alter." These ideas may have influenced John Locke's
concept of inalienable rights through his attendance of lectures
given by Edward
Pococke, a professor of Arabic
studies.

In 17th-century
England, philosopherJohn
Locke discussed natural
rights in his work, and identified them as being "life,
liberty, and estate (or property)", and argued that such
fundamental rights could not be surrendered in the social contract.
These ideas were claimed as justification for the rebellion of the
American colonies. As George Mason
stated in his draft for the Virginia Declaration of Rights, "all
men are born equally free," and hold "certain inherent natural
rights, of which they cannot, by any compact, deprive or divest
their posterity."

The distinction between alienable and unalienable
rights was introduced by
Francis Hutcheson in his A System of Moral Philosophy (1755)
based on the Reformation
principle of the liberty of conscience. One could not in fact give
up the capacity for private judgment (e.g., about religious
questions) regardless of any external contracts or oaths to
religious or secular authorities so that right is "unalienable." In
discussions of social
contract theory, "inalienable rights" were said to be those
rights that could not be surrendered by citizens to the sovereign.
Such rights were thought to be natural
rights, independent of positive law. Natural rights date back
at least to the Roman Empire, and were recognized during medieval
times, but in this context are an element of the classical
liberalism of the 18th and 19th centuries. Classical Liberal
thinkers reasoned that each man is endowed with rights, of which
the rights to life, liberty and property were thought to be
fundamental. However, they reasoned that in the natural
state only the strongest could benefit from their rights. Each
individual forms an implicit social
contract, ceding his or her rights to the authority to protect
his or her right from being abused. For this reason, almost all
classical liberal thinkers, for example, accepted the death penalty
and incarceration as necessary elements of government.

In the
nineteenth century, the movement to abolish slavery seized this
passage as a statement of constitutional principle, although the
U.S. constitution recognized and protected slavery. As a lawyer,
future
Chief JusticeSalmon P.
Chase argued before the Supreme Court in the case of John Van
Zandt, who had been charged with violating the Fugitive
Slave Act, that:

"The law of the Creator, which invests every human being with
an inalienable title to freedom, cannot be repealed by any interior
law which asserts that man is property."

Many scholars now
argue that the Fourteenth Amendment to the Constitution, enacted
after the Civil War and the abolition of slavery, wrote the
principles of equality and natural rights into the Constitution for
the first time. However, it can also been argued that the axiom of
inalienable rights was written into the Bill of Rights as the Ninth
Amendment rights “retained by the people”.

Freeborn rights

An alternative argument claims that the
idea of inalienable rights
is derived from the freeborn rights claimed by the EnglishmanJohn
Lilburne in his conflict with both the monarchy of King
Charles I and the military dictatorship of the republic
governed by Oliver
Cromwell. Lilburne (known as Freeborn John) defined freeborn
rights as being rights that every human being is born with, as
opposed to rights bestowed by government or by human law.

Liberty

Liberty is divided into four types : natural,
personal, civil and political. The first two are inalienable, the
latter two are government granted. Natural liberty is absolute
freedom, limited only by the laws of nature. It is exercised upon
one's private property or upon unclaimed property (anywhere else
would be a trespass). Personal liberty is the right of locomotion,
the freedom to travel upon public roads and waterways; limited only
by the requirement to not infringe another's right to travel. Civil
liberty is the permission from government to do that which would
otherwise be a trespass, a tort or not allowed by law. A license to
practice medicine is an example of a civil liberty (inflict injury
without criminal liability). Political liberty is the permission to
vote and hold office. In countries with socialist / communist
governments that abolish private property rights, natural and
personal liberty do not exist. Permission (license) is required for
most activities and actions.

Rights based on de facto inalienable capacities

One golden
thread of argument was developed in the anti-slavery and democratic
movements. It dates back to the Stoics and descends
through the Reformation to the Enlightenment
(mostly Scottish and German). The Stoics held that no one was a
slave by their nature; slavery was an external condition juxtaposed
to the internal freedom of the soul (sui juris). Seneca
wrote:

It is a mistake to imagine that slavery pervades
a man's whole being; the better part of him is exempt from it: the
body indeed is subjected and in the power of a master, but the mind
is independent, and indeed is so free and wild, that it cannot be
restrained even by this prison of the body, wherein it is
confined.

The Stoic doctrine that the "inner part cannot be
delivered into bondage" re-emerged in the Reformation doctrine of
liberty of conscience. Martin
Luther wrote:

Furthermore, every man is responsible for his own
faith, and he must see it for himself that he believes rightly. As
little as another can go to hell or heaven for me, so little can he
believe or disbelieve for me; and as little as he can open or shut
heaven or hell for me, so little can he drive me to faith or
unbelief. Since, then, belief or unbelief is a matter of every
one's conscience, and since this is no lessening of the secular
power, the latter should be content and attend to its own affairs
and permit men to believe one thing or another, as they are able
and willing, and constrain no one by force.

The Scottish
Enlightenment in the person of Francis
Hutcheson made the de facto inalienability of this liberty of
judgment into a theory of inalienable rights. "Thus no man can
really change his sentiments, judgments, and inward affections, at
the pleasure of another; nor can it tend to any good to make him
profess what is contrary to his heart. The right of private
judgment is therefore unalienable." In the German Enlightenment,
Hegel gave
the most developed treatment of this inalienability argument. Like
Hutcheson, Hegel based the theory of inalienable rights on the de
facto inalienability of those aspects of personhood that
distinguish persons from things. A thing, like a piece of property,
can in fact be transferred from one person to another. But the same
would not apply to those aspects that make one a person, wrote
Hegel:

The right to what is in essence inalienable is
imprescriptible, since the act whereby I take possession of my
personality, of my substantive essence, and make myself a
responsible being, capable of possessing rights and with a moral
and religious life, takes away from these characteristics of mine
just that externality which alone made them capable of passing into
the possession of someone else. When I have thus annulled their
externality, I cannot lose them through lapse of time or from any
other reason drawn from my prior consent or willingness to alienate
them.

The historical sophisticated apologies for
slavery and non-democratic governments were based on explicit or
implicit voluntary contracts to alienate any "natural rights" to
freedom and self-determination. But the de facto inalienability
argument provided the basis for the anti-slavery movement to argue
not simply against involuntary slavery but against any explicit or
implied contractual forms of slavery. Any contract that tried to
legally alienate such a right would be inherently invalid.
Similarly, the argument was used by the democratic movement to
argue against any explicit or implied social contracts of
subjection (pactum subjectionis) by which a people would supposedly
alienate their right of self-government to a sovereign as, for
example, in Leviathan by Thomas
Hobbes. According to Ernst Cassirer,

There is, at least, one right that cannot be
ceded or abandoned: the right to personality…They charged the great
logician [Hobbes] with a contradiction in terms. If a man could
give up his personality he would cease being a moral being. … There
is no pactum subjectionis, no act of submission by which man can
give up the state of free agent and enslave himself. For by such an
act of renunciation he would give up that very character which
constitutes his nature and essence: he would lose his
humanity.

These themes converged in the debate about
American Independence. While Jefferson was writing the Declaration
of Independence, Richard
Price in England sided with the Americans' claim "that Great
Britain is attempting to rob them of that liberty to which every
member of society and all civil communities have a natural and
unalienable title." Price again based the argument on the de facto
inalienability of "that principle of spontaneity or
self-determination which constitutes us agents or which gives us a
command over our actions, rendering them properly ours, and not
effects of the operation of any foreign cause. Any social contract
or compact allegedly alienating these rights would be non-binding
and void, wrote Price:

Neither can any state acquire such an authority
over other states in virtue of any compacts or cessions. This is a
case in which compacts are not binding. Civil liberty is, in this
respect, on the same footing with religious liberty. As no people
can lawfully surrender their religious liberty by giving up their
right of judging for themselves in religion, or by allowing any
human beings to prescribe to them what faith they shall embrace, or
what mode of worship they shall practise, so neither can any civil
societies lawfully surrender their civil liberty by giving up to
any extraneous jurisdiction their power of legislating for
themselves and disposing their property.

Price raised a furor of opposition so in 1777 he
wrote another tract that clarified his position and again restated
the de facto basis for the argument that the "liberty of men as
agents is that power of self-determination which all agents, as
such, possess." In Intellectual Origins of American Radicalism,
Staughton
Lynd pulled together these themes and related them to the
slavery debate:

Then it turned out to make considerable
difference whether one said slavery was wrong because every man has
a natural right to the possession of his own body, or because every
man has a natural right freely to determine his own destiny. The
first kind of right was alienable: thus Locke neatly derived
slavery from capture in war, whereby a man forfeited his labor to
the conqueror who might lawfully have killed him; and thus Dred
Scott was judged permanently to have given up his freedom. But the
second kind of right, what Price called "that power of
self-determination which all agents, as such, possess," was
inalienable as long man remained man. Like the mind's quest for
religious truth from which it was derived, self-determination was
not a claim to ownership which might be both acquired and
surrendered, but an inextricable aspect of the activity of being
human.

Applications in international law

Many documents now echo
the phrase used in the
United States Declaration of Independence. The preamble to the
1948
Universal Declaration of Human Rights asserts that rights are
inalienable: "recognition of the inherent dignity and of the equal
and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world." However, of
course, there is dispute which "rights" are truly natural rights
and which are not.

The signers of the Declaration of Independence
deemed it a "self evident truth" that all men are "endowed
by their Creator with certain unalienable Rights". Critics,
however, could argue that use of the word "Creator" signifies that
these rights are based on theological principles, and
might question which theological principles those are, or why those
theological principles should be accepted by people who do not
adhere to the religion from which they are derived.

Derivation of inalienable rights from Natural Law
can also be criticized on solely philosophical grounds. The
is-ought
problem of David Hume is
the fallacy of deriving normative propositions (how the world ought
to be) from naturalistic ones (how the world is) without providing
the necessary justification for such a logical jump. Jonathan
Wallace claims in his paper "Natural Rights Don't Exist," that the
phrase "We hold these truths to be self-evident" is simply a "more
elegant version of 'Because we said so.'"

In "The
Social Contract," Jean-Jacques
Rousseau claims that the existence of inalienable rights is
unnecessary for the existence of a constitution or a set of
laws and rights. This idea of a social
contract – that rights and responsibilities are
derived from a consensual contract between the government and the
people – is the most widely recognized alternative.

Samuel
P. Huntington, an American political
scientist, wrote that the "inalienable rights" argument from
the Declaration of Independence was necessary because "The British
were white, Anglo, and Protestant, just as we were. They had to
have some other basis on which to justify independence".

Notes

References

Hutcheson, Francis. A System of Moral Philosophy. 1755, London.

Locke, John. Two Treatises on Government. 1690 (primarily the
second treatise)